Becknell v. Hosier

• Decision Date: 13 May 1894
• Docket Number: 996
• Citation: 37 N.E. 580,10 Ind.App. 5
• Parties: BECKNELL v. HOSIER
• Court: Indiana Appellate Court

37 N.E. 580

10 Ind.App. 5

BECKNELL v. HOSIER

No. 996

Court of Appeals of Indiana

May 13, 1894

From the Kosciusko Circuit Court.

Judgment reversed, with instructions to sustain appellant's motion for new trial.

L. W Royse, I. H. Hall, J. D. Osborne and A. S. Zook, for appellant.

H. S Biggs and S. J. North, for appellee.

OPINION

GAVIN, J.

The appellee sued to recover damages for malpractice by appellant in failing to properly treat and set a dislocated hip.

The answer was a general denial.

There was a trial by jury, which returned a special verdict on which judgment was rendered in favor of appellee for $ 1,500.

Appellant's motion for judgment on the verdict and his motion for new trial constitute the basis of this appeal.

The appellant did not undertake, absolutely, to cure appellee but he was bound, as his attending physician and surgeon, to possess and exercise the average degree of skill and care generally possessed and exercised by members of his profession practicing in such localities. Gramm v. Boener, 56 Ind. 497; Kelsey v. Hay, 84 Ind. 189.

The substance of the special verdict (except two paragraphs hereinafter set forth in full) is as follows:

On December 19, 1890, the appellee's right hip was injured by his being run over by a loaded wagon; appellant, a practicing surgeon, was called on the same day and undertook to treat the injury; after making a slight and insufficient examination, he concluded that the injury was a mere bruise, prescribed some liniments for it, went away and did not return until specially called on December 29, 1890. At this time the hip was dislocated; the known and well marked symptoms of a dislocation were present, and the surgeon's attention was called to them, yet he made only a slight examination and still failed to discover the dislocation. On January 2d, however, appellant did discover the dislocation, and made an unsuccessful attempt to reduce it.

There is also a finding that the defendant neglected to use, in the treatment of appellee's said hurt, reasonable care and skill, such as was generally used by surgeons practicing in his locality, whereby appellee was damaged in the sum of $ 1,500.

It will be observed that there is no finding of the existence of a dislocation prior to December 29, 1890; neither is there any finding that the appellant could have discovered the dislocation by the most careful examination at any time before he did so learn, nor that he could have reduced the dislocation if he had been aware of its existence, except so far as this latter fact may be found by the fourth paragraph of the special verdict hereinafter set out.

There would clearly be no actionable negligence in failing to discover a dislocation, unless it really existed and its existence was ascertainable by the exercise of proper care and skill, nor in failing to reduce it unless it was susceptible of reduction by the exercise of such care and skill.

There are two additional findings which have not been set out above, from which appellee claims to supply whatever fact may be essential to his recovery and wanting in the remainder of the verdict.

These two paragraphs are as follows:

"4th. On January 4, 1891, the defendant again attended the plaintiff, and attempted to reduce said dislocation and did not reduce it, and neglected and failed to provide and apply the necessary, usual, and proper bandages and means to said hip to keep the same in place, which, by the use of reasonable care and skill, he could have done, by reason whereof said hip joint became, and is, useless and so remains, by reason whereof the plaintiff is deprived of the use of his right leg, and will always be a cripple."

"5th. After said reduction of said dislocation and after said hip became again dislocated, the use of reasonable care and skill in the examination of said hip would have discovered the same, the known symptoms thereof being marked and distinct, and the attention of the defendant being repeatedly called thereto, but he negligently failed to make a careful examination concerning the same for a period of about six weeks when it had become impossible to reduce said dislocation again, or if possible, only by inflicting upon the plaintiff extreme pain and suffering."

A special verdict is to be considered, as is contended by appellee, not in detachments but as a whole. Cleveland, etc., R. W. Co. v. Closser, 126 Ind. 348, 26 N.E. 159, but when thus considered, the facts relied on should be found clearly, definitely and plainly. It is not necessary that they should be found exactly as pleaded. It is sufficient if the substance of the issues be proved. Puterbaugh v. Puterbaugh, 131 Ind. 288, 30 N.E. 519.

A special verdict is not to be scrutinized and examined as with a microscope to bring to light infinitessimal defects and subtle and refined distinctions so shadowy as to be practically unreal. It is to be construed reasonably and fairly. Branson v. Studabaker, 133 Ind. 147, on p. 162, 33 N.E. 98. Keeping in mind, however, that it must contain within itself, without aid by intendment or inferences other than those which necessarily follow, all those essential facts which are required to authorize a recovery by the party upon whom rests the burden of proof. Gordon v. Stockdale, 89 Ind. 240; Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186; Noblesville Gas, etc., Co. v. Loehr, 124 Ind. 79, 24 N.E. 579.

An examination of these paragraphs (the 4th and 5th), leaves us in doubt and uncertainty as to what was intended by the jury. Whether there was no reduction of the dislocation or a reduction, but a failure to provide and use proper appliances to keep the hip in place after the reduction, can not be definitely ascertained. Whether the loss of the use of the limb was caused by the failure to reduce, or by the failure to provide proper appliances to keep it reduced, can not be positively known from this verdict. We are left in doubt as to whether the jury meant to find that the reduction could have been accomplished by the use of proper care and skill, or that the hip could have been kept in...